FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

April 28, 2014

Elisabeth A. Shumaker
Clerk of Court

MICHAEL A. CAMPBELL,
Petitioner-Appellant,
v.
TERRY MARTIN, Warden,

No. 13-6298
(D.C. No. 5:09-CV-00174-C)
(W.D. Okla.)

Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.

Michael A. Campbell, a state prisoner proceeding pro se, seeks to appeal the
district courts dismissal of his motion under Fed. R. Civ. P. 60(b) for lack of
jurisdiction after the court construed the motion as an unauthorized second or
successive habeas application under 28 U.S.C. 2254. We deny a certificate of
appealability (COA) and dismiss this proceeding.
Campbell was convicted in Oklahoma state court on drug trafficking charges
in 2005. In February 2009, after filing a direct appeal and seeking state
post-conviction relief, he filed a pro se habeas corpus application under 2254. He
*

This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

asserted eleven grounds for relief, including several claims related to the trial courts
failure to suppress evidence seized from his home. More specifically, Campbell
argued that the seizure violated his Fourth Amendment rights; his trial counsel was
ineffective for failing to move to suppress the seized evidence; and his appellate
counsel was ineffective for failing to raise this Fourth Amendment claim on appeal
and failing to argue that trial counsel was ineffective. After Campbell filed
objections to a magistrate judges report and recommendation to deny habeas relief
(R&R), the district court adopted the R&R and entered judgment against him in
March 2010. We denied Campbell a certificate of appealability (COA). Campbell v.
Workman, 386 F. Appx 809, 810 (10th Cir. 2010).
In November 2013, Campbell filed a Rule 60(b) motion in the district court.
He asked the court to reopen and set aside [its 2010] order dismissing the first
2254 habeas corpus proceeding and decide the facts and merits in and around the
consent to search issue and ineffective assistance of counsel, which were not
addressed but deserved review. R., Vol. 1 at 54. The district court construed
Campbells motion as an unauthorized second or successive 2254 application and
dismissed it for lack of jurisdiction. He now seeks a COA to appeal the district
courts dismissal.
Campbell must obtain a COA to pursue an appeal. See Montez v. McKinna,
208 F.3d 862, 866-67 (10th Cir. 2000) (holding state prisoner must obtain COA to
appeal final order in habeas corpus proceeding); cf. United States v. Harper, 545 F.3d
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1230, 1233 (10th Cir. 2008) (holding federal prisoner must obtain COA to appeal
district courts dismissal of unauthorized second or successive motion under
28 U.S.C. 2255 for lack of jurisdiction). Because the district courts ruling rested
on procedural grounds, Campbell must show both that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
A Rule 60(b) motion filed in a habeas proceeding must be treated as a second
or successive 2254 application if it in substance or effect asserts or reasserts a
federal basis for relief from the petitioners underlying conviction. Spitznas v.
Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). Thus, a motion will be treated as a
second or successive habeas application when it attacks . . . the substance of the
federal courts resolution of a claim on the merits. In re Lindsey, 582 F.3d 1173,
1174-75 (10th Cir. 2009) (per curiam). We have recognized two categories of
Rule 60(b) motions that are not treated as second or successive habeas applications:
(1) motions that challenge[] only a procedural ruling of the habeas court which
precluded a merits determination of the habeas application; and (2) motions that
challenge[] a defect in the integrity of the federal habeas proceeding. Spitznas,
464 F.3d at 1216.
Although we liberally construe Campbells pro se application for a COA,
see Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002), he fails to show that
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reasonable jurists would debate the correctness of the district courts procedural
ruling. First, he devotes the majority of his appeal brief to arguing the merits of his
Fourth Amendment and ineffective assistance claims, rather than error in the district
courts dismissal of his Rule 60(b) motion. Moreover, to the extent that Campbell
argues that his motion did not bring a habeas claim, his contentions lack merit.
Campbell appears to argue that his motion was not a second or successive
habeas application because he was challenging the district courts failure to address
some of his habeas claims. A habeas applicant may raise in a Rule 60(b) motion a
contention that the district court did not consider one or more of his habeas claims.
See Spitznas, 464 F.3d at 1225. Such a contention asserts a defect in the integrity of
the federal habeas proceedings. Id. But in his Rule 60(b) motion, Campbell
discussed the courts ruling on his Fourth Amendment claim, R. Vol. 1 at 55, 75, and
he asserted that he was challenging the integrity of the district courts assessment of
[that] claim, id. at 66 (emphasis added). Likewise, he argued that the district court
had misapplied Supreme Court precedent in deciding his ineffective assistance
claims. Id. at 67. In fact, the R&R considered and rejected all of Campbells
arguments regarding the trial courts failure to suppress the seized evidence and his
claims of ineffective assistance related to that issue. See R&R at 5-7, 39-42, 44-49,
63-64, Campbell v. Workman, No. 5:09-CV-00174-C (W.D. Okla. Jan. 28, 2010).
Thus, the district court did not construe Campbells Rule 60(b) motion as asserting
the courts failure to consider any of his habeas claims, and reasonable jurists would
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not debate the correctness of that ruling. See Lindsey, 582 F.3d at 1175 (holding
when motion asserts error in previous determination of habeas claims, it is making a
habeas corpus claim).1
Campbell may also be arguing that his Rule 60(b) motion was not a second or
successive habeas application because he was challenging a procedural ruling that
precluded a merits determination of the habeas application. Spitznas, 464 F.3d at
1216. Such a claim does not require this courts authorization. See id. But
Campbells contention that the district court erroneously denied him an evidentiary
hearing did not raise that kind of claim. Rather, the district court held that he failed
to show that his allegations, if true and not controverted by the existing record,
would entitle him to habeas relief. R&R at 65-66. Where a district courts decision
not to hold an evidentiary hearing did not preclude a merits determination, but
instead was the result of a merits determination, a Rule 60(b) motion challenging
that ruling requires our authorization. Lindsey, 582 F.3d at 1175 (holding district
court necessarily made a merits determination in deciding [the] 2255 motion
without a hearing).

To the extent Campbell argues that his Rule 60(b) motion was challenging a
defect in the integrity of his habeas proceedings based on his pro se status, we have
never held that a pro se habeas applicants failure to present his claims more
effectively results in a such a defect. Reasonable jurists would not disagree with the
district courts dismissal of Campbells Rule 60(b) motion for lack of jurisdiction
despite his pro se status.
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Finally, Campbell argues that his Rule 60(b) motion was based on newly
discovered evidence. But a motion seeking leave to present newly discovered
evidence in order to advance the merits of a claim previously denied is treated as a
second or successive claim. Spitznas, 464 F.3d at 1216. If Campbell has newly
discovered facts supporting his innocence, he may seek this courts authorization to
file a second or successive 2254 habeas application on that basis, if those facts
support a new claim of a constitutional violation and if he can show that, but for that
constitutional error, he would not have been found guilty. See 28 U.S.C.
2244(b)(1), (2)(B)(i)-(ii).
Because Campbell fails to show that jurists of reason would find it debatable
whether the district courts procedural ruling was correct, we deny his application for
a COA and dismiss the appeal. We grant Campbells application to proceed without
prepayment of costs and fees.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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